88 F.

3d 962

In the Matter of William A. CALVO, III, Petitioner.

No. 95-4230

Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
July 24, 1996.
William A. Calvo, III, Belleview, FL, pro se.
Linda Collins Hertz, Michael R. Tein, Asst. U.S. Attys., Miami, FL, for
appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, Chief Judge, and HATCHETT and CARNES, Circuit
Judges.
PER CURIAM:

William A. Calvo, III, appeals the district court's order that disbarred him from
practicing law in the Southern District of Florida. In disbarring Calvo, the
district court relied upon the Florida Supreme Court's disbarment of him. That
reliance was improper, Calvo contends, because the proceedings that resulted
in his state court disbarment were constitutionally deficient. For the reasons
discussed below, we affirm the district court's order.

I. BACKGROUND
2

In 1988, a federal district court granted the Securities and Exchange

Commission's ("SEC") motion for an injunction prohibiting Calvo from
violating the federal securities laws. SEC v. Elec. Warehouse, Inc., 689 F.Supp.
53 (D.Conn.1988), aff'd, 891 F.2d 457 (2d Cir.1989), cert. denied, 496 U.S.
942, 110 S.Ct. 3228, 110 L.Ed.2d 674 (1990). The court found that Calvo had
directly violated the Securities and Exchange Act of 1934 (the "Securities Act")

and its related rules, and also that Calvo had aided and abetted others in
violating the Securities Act and its rules. As a result, the SEC suspended Calvo
from appearing or practicing before it for two years. In re Calvo, SEC
Admin.Proc. No. 3-7038.
3

Thereafter, the Florida Bar instituted disciplinary proceedings against Calvo,

based upon his having committed securities fraud. An evidentiary hearing was
held, after which the Florida Bar referee recommended that Calvo be disbarred.
Calvo challenged that recommendation before the Florida Supreme Court on
several grounds, all of which that court rejected; it ordered Calvo disbarred.
The Florida Bar v. Calvo, 630 So.2d 548 (Fla.1993), cert. denied, --- U.S. ----,
115 S.Ct. 58, 130 L.Ed.2d 16 (1994). Calvo filed a petition for writ of certiorari
in the United States Supreme Court, which was denied.

In 1994, the federal district court entered an order directing Calvo to show
cause within thirty days "why the imposition of the identical discipline by this
court would be unwarranted and the reasons therefor." In his response to that
order, Calvo alleged numerous constitutional defects in the Florida state court
proceedings, and requested an evidentiary hearing before the district court.
Calvo attached several documents to his response, including: (1) a forty-six
page "certified narrative" written by Calvo regarding the Florida proceedings,
(2) copies of the briefs that both parties filed before the Florida Supreme Court,
(3) a copy of the Florida Supreme Court's decision, (4) a copy of the SEC's
decision, and (5) Calvo's motion for rehearing before the Florida Supreme
Court. The district court declined to conduct a hearing, and, in 1995, pursuant to
its local rules of disciplinary enforcement, ordered that Calvo be disbarred from
practice before it. See S.D.Fla. Rules Governing Attorney Discipline, Rule V.E.
Calvo appeals that order.

II. DISCUSSION
A.
5

We must first decide whether we have jurisdiction over Calvo's appeal. The
jurisdictional question focuses on whether there is a case or controversy under
Article III of the United States Constitution. In supplemental briefs filed in this
Court, both Calvo and the government contend that we have jurisdiction. We
agree. Although neither the Supreme Court nor this Court has ever expressly
held that we have jurisdiction over an appeal from a district court's disbarment
order, there is an abundance of authority from the Supreme Court and this
Court that strongly suggests that we do.

First, the Supreme Court explicitly has held that state court bar admissions and
bar disciplinary decisions present "cases or controversies" under Article III. In
In re Summers, 325 U.S. 561, 568, 65 S.Ct. 1307, 1312, 89 L.Ed. 1795 (1945),
the Supreme Court held that it had jurisdiction to review a state supreme court's
denial of admission to that state bar because that denial involved a case or
controversy. The Court stated:

7
Where
relief is thus sought in a state court against the action of a committee,
appointed to advise the court, and the court takes cognizance of the complaint
without requiring the appearance of the committee or its members, we think the
consideration of the petition by the Supreme Court, the body which has authority
itself by its own act to give the relief sought, makes the proceeding adversary in the
sense of a true case or controversy.
8

Id. at 567-68, 65 S.Ct. at 1311-12. The Court emphasized that "[t]he form of the
proceeding is not significant. It is the nature and effect which is controlling."
Id. at 567, 65 S.Ct. at 1311.

Similarly, in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,

103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Court held that a District of
Columbia Court of Appeals order rejecting an application for admission to the
District of Columbia bar was judicial in nature, thus making applicable the
doctrine that bars federal district court review of state court decisions. The
Court stated that "the proceedings before the District of Columbia Court of
Appeals involved a 'judicial inquiry' in which the court was called upon to
investigate, declare, and enforce 'liabilities as they [stood] on present or past
facts and under laws supposed already to exist.' " Id. at 479, 103 S.Ct. at 1313
(alteration in original) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S.
210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)); cf. In re Palmisano, 70 F.3d
483 (7th Cir.1995) (stating that Feldman "supplies the essential analysis" as to
whether federal courts of appeals have jurisdiction over district court
disciplinary actions).

10

Summers and Feldman are instructive in the present case, and inform us that
bar admissions, bar disciplinary actions, and disbarments are essentially judicial
in nature and thus present a case or controversy under Article III. See Summers,
325 U.S. at 566-67, 65 S.Ct. at 1311 (1945) ("A case arises, within the meaning
of the Constitution, when any question respecting the Constitution, treatise or
laws of the United States has assumed 'such a form that the judicial power is
capable of acting on it.' ").

11

It matters not that this case involves the disbarment of an attorney instead of the

11

It matters not that this case involves the disbarment of an attorney instead of the
denial of admission to a bar, or that this case involves a federal bar rather than a
state bar. The district court's actions were as judicial in nature as those of the
state supreme court in Summers. Prior to ordering Calvo disbarred, the district
court judges met and considered Calvo's response to the order to show cause.
The district court had before it Calvo's forty-six page description of the state
court proceedings, various briefs and memoranda he had filed in the state court
proceedings, a copy of the SEC's decision, a copy of the Florida Supreme
Court's decision, and a copy of Calvo's petition for writ of certiorari to the
United States Supreme Court.

12

That the district court did not conduct a hearing regarding Calvo's disbarment
does not mean it lacked jurisdiction. See, e.g., Summers, 325 U.S. at 566-69, 65
S.Ct. at 1311-12 (assuming jurisdiction over appeal from denial of admission
even though no hearing was held). Our jurisdictional inquiry concerns "the
nature and effect" of the proceeding, rather than its form. See id. at 567, 65
S.Ct. at 1311. Because the "nature and effect" of the district court proceeding
was to curtail Calvo's ability to practice law in the district court, and because
we are capable of acting on Calvo's appeal, the district court's decision to disbar
him is justiciable under Article III. See, e.g., Ex Parte Burr, 22 U.S. (9 Wheat.)
529, 530, 6 L.Ed. 152 (1824) ("the profession of an attorney is of great
importance to an individual, and the prosperity of his whole life may depend on
its exercise").

13

Second, in addition to the Supreme Court cases that explicitly hold that the
Court has jurisdiction over appeals from state bar admission and disciplinary
decisions, the Supreme Court and this Court have reviewed federal court bar
admission and disciplinary decisions on a number of occasions, which suggests
that jurisdiction over these types of appeals is proper despite the lack of explicit
holdings to that effect. In In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86
L.Ed.2d 504 (1985), the Supreme Court reviewed an order of the Eighth Circuit
Court of Appeals suspending an attorney for six months from practice in all
courts of the Eighth Circuit. The Court reversed the disbarment order on the
merits, stating that the facts, even as the district court understood them, did "not
support a finding of contemptuous or contumacious conduct, or a finding that
[the] lawyer is 'not presently fit to practice law in the federal courts.' " Id. at
647, 105 S.Ct. at 2882. The Court did not specifically address the jurisdictional
issue, and thus the case does not provide an explicit holding on that issue. Even
so, the fact that the Supreme Court reviewed the order on the merits, without
questioning its jurisdiction, strongly suggests that it believed its jurisdiction to
be proper. See also In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117
(1968) (reversing disbarment from Sixth Circuit without discussion of
jurisdiction); Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d

1342 (1957) (remanding disbarment from federal district court without

discussion of jurisdiction).
14

Similarly, this Court has reviewed numerous district court orders regarding bar
disciplinary matters. In Greer's Refuse Serv., Inc. v. Browning-Ferris Indus.,
843 F.2d 443 (11th Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 493, 102
L.Ed.2d 530 (1988) ("Wilkes III "),1 we affirmed the district court's suspension
of an attorney from practicing before it. Although Wilkes III, like Snyder, did
not explicitly address the jurisdictional question, our review of the merits in that
case suggests that we believed our jurisdiction to be proper. See also In re
Finkelstein, 901 F.2d 1560 (11th Cir.1990) (reversing the district court's order
to suspend an attorney for six months from practicing in that district, without
discussion of jurisdiction); In re Dawson, 609 F.2d 1139 (5th Cir.1980)
(affirming the en banc order of the district court, which had suspended an
attorney from practice before that district, without discussion of jurisdiction).

15

Two other courts of appeals recently have expressly held that jurisdiction exists
to decide an appeal of a federal disbarment order. In re Palmisano, 70 F.3d 483,
484-85 (7th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1854, 134 L.Ed.2d
954 (1996), and In re Jacobs, 44 F.3d 84, 87-88 (2d Cir.1994), cert. denied, --U.S. ----, 116 S.Ct. 73, 133 L.Ed.2d 33 (1995), both presented cases almost
identical to the present one. In those cases, the Seventh and Second Circuits,
respectively, explicitly held that courts of appeals have jurisdiction over appeals
of federal district court disbarment orders. But see Brooks v. Laws, 208 F.2d
18, 22-30 (D.C.Cir.1953) (holding that court of appeals lacks jurisdiction over
appeal from district court disbarment order).

16

These cases lead to one conclusion: Calvo's appeal presents a justiciable "case
or controversy." The Second Circuit aptly summarized this jurisdictional issue
in In re Jacobs--a case which raised issues identical to this case:

17

The Supreme Court and circuit courts appear to have concluded that while
regulation of attorney behavior should remain primarily within the discretion of
each district court, it is contrary to fundamental notions of fairness to close off
all avenues of review, even if only for the most glaring irregularities.

18

44 F.3d at 88.

B.
19

Having held that this appeal is properly before us, we must decide whether the

district court's order to disbar Calvo was proper. The Supreme Court has held
that "disbarment by federal courts does not automatically flow from disbarment
by state courts." Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274,
1276, 1 L.Ed.2d 1342 (1957). Even so, a state court disbarment should be
accorded federal effect, unless it appears from an "intrinsic consideration" of
the state record that: (1) the state proceeding lacked due process; (2) the proof
in the state proceeding was so infirm "as to give rise to a clear conviction on
our part that we could not, consistently with our duty, accept as final the
conclusion" of the state court; or (3) "some other grave reason existed which
should convince us that to allow the natural consequences of the judgment to
have their effect would conflict with the duty which rests upon us not to disbar
except upon the conviction that, under principles of right and justice, we were
constrained so to do." Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 379, 61
L.Ed. 585 (1917); see also S.D.Fla. Rules Governing Attorney Discipline, Rule
V.E. (requiring Selling-based analysis in disbarment actions).
20

The burden is on the disbarred attorney to show good cause why he should not
be disbarred, and the district court is not required "to conduct a de novo trial in
the first instance of [the attorney's] fitness to practice law." Wilkes III, 843 F.2d
at 447. Instead, it must determine whether "the record underlying the predicate
state disbarment ... reveal[s] the kind of infirmities identified in Selling." Id. We
review a district court's disbarment order only for abuse of discretion. E.g., In re
Gouiran, 58 F.3d 54, 56 (2d Cir.1995) ("[W]e review the district court's order
disbarring [an attorney] for clear abuse of discretion.").

21

In his response to the district court's order to show cause, Calvo raised several
arguments concerning alleged defects in the Florida disbarment proceeding,
including: (1) lack of notice that the charges could lead to disbarment; (2) lack
of proof of misconduct because of (a) improper introduction of judgments of
the SEC and the District Court for the District of Connecticut, (b) improper
introduction of hearsay testimony, and (c) lack of credibility of witnesses; (3)
deprivation of right to counsel; and (4) intervening change in the law.2

22

None of Calvo's arguments identify any of the three types of infirmities that
Selling identified. The first prong of Selling concerns due process, which is
narrowly defined, in this context, as "want of notice or opportunity to be heard."
Selling, 243 U.S. at 51, 37 S.Ct. at 379. Calvo's challenges to the state court
proceeding, as argued in his response to the order to show cause, do not raise
that type of concern. His only challenge that even remotely deals with the type
of due process concerns that would fall under the first prong of Selling is his
contention that he received inadequate notice of the Florida Bar's charges
against him, because he was not informed in advance of the hearing that he

might be disbarred. However, the published Florida Standards for Imposing

Lawyer Sanctions, Standard 5.11(f), expressly state that disbarment is
appropriate when "a lawyer engages in any other intentional conduct involving
dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects
on the lawyer's fitness to practice." Calvo certainly knew about his misconduct,
which the SEC had found to be in direct violation of the Securities Act and its
rules, before the hearing, and should have known about the Florida Standards.
Accordingly, his due process contention is without merit.
23

Under the second prong of Selling, which concerns the sufficiency of the state
court's proof, Calvo argues that the Florida proceedings suffered from an
infirmity of proof because the referee permitted hearsay testimony, considered
the judgments in the SEC actions, and allowed the testimony of witnesses who
lacked credibility. Disbarment proceedings are not criminal proceedings, and
relaxed rules of evidence apply. For example, in The Florida Bar v. Vannier,
498 So.2d 896, 898 (Fla.1986), the Florida Supreme Court held that, "[i]n bar
discipline cases, hearsay is admissible and there is no right to confront
witnesses face to face. The referee is not barred by technical rules of evidence."
We cannot say that the district court erred in finding that there was such a lack
of proof in the state disbarment proceeding as to bar the federal court from
giving federal effect to the state court's order.

24

Under the third prong of Selling, which considers whether disbarment is

improper "under the principles of right and justice," Calvo makes several
contentions. First, he contends that he was deprived of counsel at the
disbarment hearing, and that that constitutes the type of "grave reason" that
should have convinced the district court not to follow the state court's
conclusion. Calvo argues that he was deprived of his right to counsel because
the Florida Bar referee disqualified one of his attorneys, after that attorney was
designated as a potential rebuttal witness for the Florida Bar. Even if true, that
allegation does not amount to the type of grave injustice to which the third
prong of Selling refers. Calvo concedes that he was represented by another
attorney; he was not without counsel at the hearing. And even if he had not
been represented, Calvo fails to demonstrate that he had a right to counsel at the
hearing. See, e.g., Lassiter v. Dep't of Social Servs., 452 U.S. 18, 25, 101 S.Ct.
2153, 2158, 68 L.Ed.2d 640 (1981) (stating that right to appointed counsel "has
been recognized to exist only where the litigant may lose his physical liberty if
he loses the litigation").

25

Second, Calvo contends that the district court should not have followed
Florida's disbarment order, because there was an intervening change in the law
regarding securities fraud, which came after Florida disbarred Calvo and before

the district court disbarred him. He argues that the Supreme Court's decision in
Central Bank v. First Interstate Bank, 511 U.S. 164, 114 S.Ct. 1439, 128
L.Ed.2d 119 (1994), eradicated the predicate liability on which his Florida
disbarment was based, because that decision held that the Securities Act would
not support a private civil lawsuit for aiding and abetting. Be that as it may,
Calvo still violated the Securities Act, as the SEC held. Moreover, the district
court's disbarment order was based upon its overall conclusion that Calvo had
"engag[ed] in conduct that adversely reflect[ed] on his fitness to practice law,"
Fla.Disciplinary Rule 1-102(A)(6). Neither that standard, nor disbarment
generally, requires that the attorney have committed an act subjecting him to
civil or criminal liability.
III. CONCLUSION
26

We conclude that this appeal is justiciable because the district court's

disbarment order constitutes a case or controversy under Article III. Although
"disbarment by federal courts does not automatically flow from disbarment by
state courts," Theard, 354 U.S. at 282, 77 S.Ct. at 1276, Calvo has failed to
convince us that the district court should not have given federal effect to the
state court's disbarment order. Accordingly, we AFFIRM the district court's
order.

Wilkes III was preceded by In re Wilkes, 494 F.2d 472 (5th Cir.1974) ("Wilkes
I ") and Greer's Refuse Serv., Inc. v. Browning-Ferris Indus., 782 F.2d 918, 920
(11th Cir.1986) ("Wilkes II "), cert. denied, 488 U.S. 967, 109 S.Ct. 493, 102
L.Ed.2d 530 (1988)

Calvo made several other arguments in his response, all of which we reject
without further discussion